Visas – Inside Business Immigrationhttps://www.gtlaw-insidebusinessimmigration.com
Legal Analysis for the Global EmployerThu, 21 Mar 2019 14:13:23 +0000en-UShourly1https://wordpress.org/?v=4.9.10Travel During H-1B Cap Season- Do’s and Don’tshttps://www.gtlaw-insidebusinessimmigration.com/h-1b-cap/travel-during-h-1b-cap-season-dos-and-donts/
Mon, 11 Feb 2019 21:56:58 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5974Continue Reading]]>H-1B cap season is once again around the corner. On March 29, 2019, hundreds of thousands of H-1B cap petitions will be shipped to USCIS Service Centers in Vermont and California for selection in this year’s cap season. Assuming premium processing does not come back, the wait time for that receipt notice seems to stretch on forever as an indication that the lucky petition was picked. The question that always comes up refers to international travel during H-1B cap season, since April and May seem to go into a black hole of no news. Can a beneficiary for an H-1B cap petition travel outside the US during the H-1B cap? The answer is extremely lawyerly: It Depends. Below, we lay out the scenarios for different classifications as to who may or may not travel internationally, and if travel is a must, what the implications mean.

F-1 Students

Relying on Cap Gap: If you are an F-1 student, and relying on cap gap, you should not travel before you receive news of whether your petition has been selected and approved. If you do travel and you are relying on cap gap for work authorization, you may not be able to return to the United States, as your F-1 status is no longer valid. If your H-1B petition has been selected and approved (as a change of status), then you may travel and return before Oct. 1, if you meet certain conditions; however, we strongly recommend against travel during this period if you are relying on cap-gap.

Not Relying on Cap Gap: If you are an F-1 student and your EAD is still valid, you may travel, with all the required documentation for F-1 students. However, note that if you do travel, and your petition was filed as a Change of Status, the petition will automatically be approved as a Consular Notification because you will be deemed to have abandoned your Change of Status application by traveling outside the United States while it was pending.

Other Non-Immigrant Status

If you are on a different non-immigrant status – for example, H-4, TN, O-1, and you know you have international travel plans between the months of April and October, it may be smart to have your petition filed as consular notify if your current non-immigrant status will still be valid and you have the proper visa and other documents. If you travel during the period between April 1 and Sept. 20 (because you may enter up to 10 days before the start date in H-1B status), and your petition was filed as a Change of Status, the Change of Status will be denied and you will need to exit the U.S. and reenter to “activate” the H-1B after Sept. 20, after the H-1B petition has been approved.

If you have any further questions, please contact a team member at Greenberg Traurig. We will continue to post updates and practice pointers for the upcoming H-1B cap season.

]]>Changes in H and L Visa Processing in Chinahttps://www.gtlaw-insidebusinessimmigration.com/china/changes-in-h-and-l-visa-processing-in-china/
Fri, 01 Feb 2019 20:39:51 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5961Continue Reading]]>The Department of State (DOS) and Mission China announced that changes have been made to consolidate the processing in China of H and L visa applications for foreign nationals seeking to work in the United States. Starting March 1, 2019, all interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. The U.S. Consulate General Chengdu and U.S. Consulate General Shenyang will no longer be conducting H or L visa interviews. These changes are a result of the volume and complexity of H and L visa petitions, and will ensure adequate resources and expertise are effectively applied in reviewing the petitions.

H-1B, Specialty Occupation, is a visa that allows U.S. companies to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Specialty occupation fields include, but are not limited to: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

L-1A, Intracompany Transferee Executive or Manager, is a visa classification that allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L-1A visa also allows a foreign company, which may not already have an affiliated U.S. office, to send an executive or manager to the U.S. with the purpose of establishing one.

L-1B, Intracompany Transferee Specialized Knowledge, allows a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interest from one of its affiliated foreign offices to one of its U.S. offices. The L-1B visa also allows a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States with the purpose of establishing one.

GT will continue to monitor and report on changes in consular processing that can impact the visa application process.

To read more on U.S. business immigration developments as relates to China, click here.

˘ Not admitted to the practice of law

]]>DHS Publishes Final Rule for H-1B Lotteryhttps://www.gtlaw-insidebusinessimmigration.com/h-1b-cap/dhs-publishes-final-rule-for-h-1b-lottery/
Wed, 30 Jan 2019 22:30:27 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5952Continue Reading]]>On Nov. 30, 2018, the Department of Homeland Security issued the notice of proposed rulemaking to amend its H-1B cap-subject lottery process. On Jan. 31, 2019, USCIS will publish the final rule after a 30-day comment period. The final rule encompasses a pre-registration process and a modified selection process. The registration process will be suspended for FY 2020 cap season to finish testing the H-1B registration system. Below is what employers, attorneys, and employees alike need to know:

How to Register: The USCIS will house the H-1B cap registration process through ICAM, a portal that will allow accounts to submit H-1B cap registrations. A petitioner must submit a separate registration for each beneficiary, and the beneficiary must be named. A petitioner may submit one registration per beneficiary, and as with previous years, if multiple requests for the same beneficiary and same petitioner are found, the registration for that beneficiary will be considered invalid.

Timing: The registration period will last at least 14 calendar days, and will start at least 14 calendar days before the earliest date the H-1B petition can be filed. USCIS will announce the start of the registration period at least 30 days before the first date of open registration. As with previous filings, the start date on the petition may only begin on the first day of the fiscal year, Oct. 1. If for any reason the registration period is open longer than anticipated by USCIS, then the start date may begin later.

Selection Process: USCIS will conduct a random lottery of the registrations it receives. If the cap has not been reached at the end of the period, USCIS will notify all those that are selected and keep the registration period open until the slots have been filled, which will determine the “final registration date.” If the cap is reached at the end of the registration period, USCIS will notify the public of the “final registration period” and will then randomly select via computer the registrations that will move on to the next stage.

Most notably, the order of selection will change for the petitions filed for FY 2020, though the registration process will take effect FY 2021 due to testing of the proposed system. Instead of the U.S. Master’s degree registrations being selected first for the 20,000 spots, the general pool will go first, where 65,000 regular cap registrations are selected. This means there will be more U.S. Master’s degree registrations mixed within the regular pool. USCIS will announce the “final registration date” after all U.S. Master’s degree registrations have been selected.

USCIS will maintain a reserve pool of registrations in case it needs to increase the number of registrations to meet the H-1B cap (both regular and advanced degree exemption).

Notification: Petitioners will receive an electronic notification that their registration has been selected, and can therefore move forward with filing the H-1B petition, only for the beneficiary named on the registration notice. The H-1B petition must be filed within the filing period indicated on the notice, which will be at least 90 days. If this window is missed, USCIS will deny or reject the H-1B petition.

Fine Text: USCIS makes it very clear that even if the registration process is suspended, the order and manner in which the cap subject petitions are selected will remain in effect.

Implications: The registration process will not go into effect this coming H-1B cap season, but the system will be tested throughout the year for implementation next year. The manner of selecting cap cases will change, with the regular cap going first, then the U.S. Master’s cap. As such, there will be a greater chance for those with U.S. Master’s degrees to be selected in the process.

Greenberg Traurig will continue to monitor changes for this coming H-1B cap season, as USCIS should be making its announcement shortly. To read more on H-1B caps, click here.

]]>DOL Implements New LCA Form Effective Nov. 19, 2018https://www.gtlaw-insidebusinessimmigration.com/uncategorized/dol-implements-new-lca-form-effective-nov-19-2018/
Wed, 21 Nov 2018 18:27:34 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5866Continue Reading]]>The Labor Condition Application (LCA) Form, ETA 9035, is a required form for non-immigrant visa categories including the H-1B, H-1B1 (Chile/Singapore) and E-3 (Australia). Pursuant to The Department of Labor’s plans to better protect American workers, confront fraud, and increase transparency, a new version of the LCA form took effect on Nov. 19, 2018. This form includes several new key revisions: (1) Disclosing all places of employment for H-1B workers, including periods of short duration; (2) Providing the estimated number of H-1B workers at each place of intended employment; (3) Requiring the clear identification of secondary entities who are using H-1B workers; and (4) Requiring H-1B dependent employers who are claiming an exemption solely on the basis of education, such as a master’s degree, to provide documentation of the degree. It is recommended that all U.S. employers revisit and review their contracts in place for third-party placement of their own employees as well as their vendor agreements, which may place workers at their work locations.

]]>USCIS Continues to Increase Number of RFEs and Denials Issuedhttps://www.gtlaw-insidebusinessimmigration.com/rfe/uscis-continues-to-increase-number-of-rfes-and-denials-issued/
Fri, 09 Nov 2018 18:47:04 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5858Continue Reading]]>Since President Trump issued his “Buy American and Hire American” Executive Order in April 2017, USCIS has been issuing Requests for Evidence (RFEs) at unprecedented rates. While the H-1B visa category was specifically targeted as one requiring stricter scrutiny and reform efforts, USCIS has also focused on other visa types for significant adjudication and approval changes. However, the underlying visa criteria and relevant immigration regulations have remained the same, signifying no controlling or concrete legal basis for the increase in RFEs and even denials.

The H-1B RFEtrend appears to be the most pervasive given the following:

For fully adjudicated cases, RFEs were issued for 69 percent of H-1B petitions in Q4 FY 2017 (which began on July 1, 2017) versus for 23 percent of the petitions in Q3

28,711 RFEs were issued in Q3 for 169,785 H-1B petitions USCIS received and 63,184 RFEs were issued in Q4 for 71,911 H-1B petitions received

The American Immigration Lawyers Association (AILA) reports that members are experiencing the same increased RFE rates for H-1B petitions in FY 2018, although official statistics have not yet been released.

The L-1 Trend

While the RFE rate for L-1 petitions has remained the same, there has been an increase in denials:

Q4 FY 2017 L-1B petitions for Specialized Knowledge workers were denied at a rate of 28.7 percent versus Q1 FY 2017 at 21.7 percent. The increase in denials continued into FY 2018 with a denial rate of 30.5 percent in Q1 and 29.2 percent in Q2.

Q4 FY 2017 L-1A petitions for Managers and Executives were denied at a rate of 21.4 percent, up from 12.8 percent in Q1.

Another possible contributing factor to consider is that USCIS’s Policy Memorandum, issued Oct. 23, 2017, directs adjudicators to review extension petitions with the same scrutiny as an initial petition. It replaced USCIS’s previous policy of giving deference to prior determinations of eligibility when there were not material changes in employment. It is now common for USCIS to issue RFEs for L-1 and H-1B extensions based on initial petitions that were approved without further question. This may present problems for employers and employees in the context of L-1 extensions for employees who have been in the United States for a number of years as the RFEs request a significant amount of information about previous qualifying employment abroad, and such an employee may not have access to or the ability to compile the detailed historical data needed. In addition, it is common for entities to be restructured and former team members and supervisors to change positions, which could in some cases make it harder to find the required information.

While RFEs are seemingly being issued blindly, there are several things employers and employees should keep in mind:

Preparing detailed job duties/descriptions specific to the individual’s position that do not contain any vague or ambiguous terms may evidence upfront that the employment qualifies for the classification sought. Adjudicators seek to understand exactly what the employee will be doing on a daily basis and what tasks the job duties entail.

Providing documentary evidence of the employee performing managerial, specialized knowledge, or specialty occupation job duties (e.g., screenshots, emails, reports, presentations, and pictures of the employee carrying out a complex process) may show that the relevant criteria are being met. Including such detail and even a few pieces of supporting documentation upfront may reduce the chance of a RFE, which is certain to require a substantial amount more of both.

]]>November 2018 Visa Bulletin Updateshttps://www.gtlaw-insidebusinessimmigration.com/visas/november-2018-visa-bulletin-updates/
Wed, 24 Oct 2018 18:38:50 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5843Continue Reading]]>The Department of State (DOS) November 2018 Visa Bulletin shows movement in employment-based categories. The EB-1 category remained retrogressed for November 2018. Although it is likely that there will be some forward movement in December 2018 for EB-1 India, it will probably NOT return to “current” this calendar year. The EB-2 India category will likely move forward in December, but it will probably be only a week or so. The EB-3 category for India on the other hand may start seeing more significant advancement in December (weeks or possibly months). To provide context, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. Current demand projections make it likely that EB-3 India could surpass EB-2 India at some point this fiscal year. GT will be closely monitoring these advancements as they unfold.

Referring to the Final Action Dates, following are updates from the September Visa Bulletin:

EB-1: Mainland China and India had significant movement since September 2018, with a cutoff date of June 1, 2016, while El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam all moved forward to April 1, 2017.

EB-2: The cutoff date for worldwide chargeability, El Salvador, Mexico, Philippines, Vietnam are all now current. Mainland China moved to May 15, 2015; India to March 26, 2009.

EB-3: In the EB-3 category, the worldwide chargeability, El Salvador/Guatemala/Honduras, Mexico and Vietnam are all current. The Mainland China cutoff is June 1, 2015; India is January 1, 2009; and Philippines is June 8, 2017.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in Mainland China and Vietnam, where the cutoff for China advanced to Aug. 15, 2014 and for Vietnam to Feb. 1, 2016.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Dates for Filing chart must be used for filing Form I-485. This is generally not the case, as USCIS usually requires that applicants use the “Application for Final Action Dates,” which typically reflects earlier cutoff dates than that “Dates for Filing” chart.

Referring to the Final Action Dates, following are updates for the June Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing of Employment-Based Visa Applications

]]>USCIS Proposes Increase to Premium Processing Feehttps://www.gtlaw-insidebusinessimmigration.com/uscis/uscis-proposes-increase-to-premium-processing-fee/
Fri, 07 Sep 2018 16:36:23 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5828Continue Reading]]>On Aug. 31, 2018, the Department of Homeland Security (DHS) proposed a final rule in the Federal Register to increase the premium processing fee for certain visa petitions to $1,410, effective Oct. 1, 2018. Premium processing, a service offered for certain petitions, requires U.S. Citizenship and Immigration Services (USCIS) to adjudicate a petition (i.e., approve, deny, or send a request for evidence) within 15 calendar days. The increase to the current fee, which is $1,225, is based upon the percentage change in the Consumer Price Index-Urban Consumers index (14.92%) since the premium processing fee of $1,225 was introduced.

DHS rationale for increasing the fee is to garner additional funds to provide certain premium-processing services to business customers and to make infrastructure improvements in adjudications and customer service processes. DHS estimates the department will receive an additional $44 million in revenue due to the increased fee. Recently, USCIS established a habit of suspending premium processing for certain petitions as it continually tries to reduce its backlog of petitions.

On or after Oct. 1, 2018, all premium processing requests must include the new fee. At this time, because of the previously discussed suspension of premium processing, most H-1B petitions are not eligible for premium processing. Only cap-exempt H-1B petitions that are filed exclusively at the California Service Center because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” with a concurrent request to notify a consular office abroad or extend the stay of a beneficiary are currently eligible for premium processing. Premium processing remains available for other petitions, such as L-1 or I-140 petitions.

]]>DHS Releases Fiscal Year 2017 Entry/Exit Overstay Reporthttps://www.gtlaw-insidebusinessimmigration.com/department-of-homeland-security/dhs-releases-fiscal-year-2017-entry-exit-overstay-report/
Fri, 10 Aug 2018 21:03:57 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5814Continue Reading]]>On Aug. 7, the Department of Homeland Security (DHS) released the Fiscal Year 2017 Entry/Exit Overstay Report (or Overstay Report). Visa Overstay Reports have been requested by Congress in recent fiscal years as a means to encourage development of a barometric Port of Entry visa checking system and to report on overstays that were identified as problematic in connection with the Sept. 11, 2001, attacks in the United States.

Student or Exchange Visitor Visa Overstay Rate For nonimmigrants who entered on a student or exchange visitor visa (F, M, or J visa), DHS has determined there were 1,662,369 students and exchange visitors scheduled to complete their program in the United States. However, 4.15 percent stayed beyond the authorized window for departure at the end of their program.

Canada and Mexico Overstay Rates Unlike other countries, a majority of travelers from Canada and Mexico enter the United States by land. Figures pertaining to Canada and Mexico are presented separately from the other countries due to the fact that air and sea information represent a much smaller portion of the Canadian and Mexican travel population. For Canada, the FY 2017 Suspected In¬-Country Overstay rate for those traveling through air and sea POEs is 1.01 percent of 9,215,158 expected departures. For Mexico, the FY 2017 Suspected In-Country Overstay rate for those traveling through air and sea POEs is 1.63 percent of 2,916,430 expected departures. This represents only travel through air and sea POEs and does not include data on land border crossings. DHS is currently working to improve its monitoring capability for land POEs.

]]>September 2018 Visa Bulletin Updateshttps://www.gtlaw-insidebusinessimmigration.com/eb-3/september-2018-visa-bulletin-updates/
Thu, 09 Aug 2018 17:57:09 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5785Continue Reading]]>The Department of State (DOS) recently released the September 2018 Visa Bulletin. The charts below show movement in employment-based categories. Referring to the Final Action Dates, following are updates from the September Visa Bulletin:

EB-1: Mainland China and India had no movement, with a cutoff date of Jan. 1, 2012, while El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam all moved forward a month, from May 1, 2016, to June 1, 2016.

EB-3: In the EB-3 category, the cutoff date for worldwide chargeability, El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam retrogressed to Nov. 1, 2016. China moved forward four months to Nov. 1, 2014. India had significant change, retrogressing six years to Jan. 1, 2003. All EB-3 retrogressions go into effect immediately and will remain through Sept. 30.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in mainland China and Vietnam, where the cutoff advanced from Aug. 1, 2014 to Aug. 8, 2014.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Application Final Action Dates chart must be used for filing Form I-485. This has not yet been updated with the September 2018 dates; however, we anticipate that USCIS will continue to follow Application Final Action Dates for September, as it has to date.

Referring to the Final Action Dates, the following are the updates for the June Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing Employment-Based Visa Applications

]]>President Signs KIWI Act Providing for E-1 and E-2 Status for New Zealandhttps://www.gtlaw-insidebusinessimmigration.com/e-visas/president-signs-kiwi-act-providing-for-e-1-and-e-2-status-for-new-zealand/
Fri, 03 Aug 2018 19:12:48 +0000https://www.gtlaw-insidebusinessimmigration.com/?p=5735Continue Reading]]>As an update to an earlier post, on Aug. 1, the president signed the Knowledgeable Innovators and Worthy Investors Act (KIWI Act) granting E-1 and E-2 status to certain New Zealand nationals under mutual considerations. This will permit citizens of New Zealand to apply for U.S. visas to carry on significant trade with the United States (E-1) or after making a substantial investment in the United States (E-2). The KIWI Act is now designated as Public Law 115-226 (132 STAT. 1625).